Re J (Children) [2013] UKSC 9

The Supreme Court unanimously dismissed a local authority's appeal, holding that a finding in earlier proceedings that a parent was merely a possible perpetrator of injury to another child cannot, by itself, found a prediction that children now in her care are likely to suffer significant harm under section 31(2) of the Children Act 1989.

Facts

Stockton-on-Tees Borough Council brought care proceedings in respect of three children: HJ (born 2005) and TJ (born 2006), the children of DJ and his former partner, and IJ (born 2009), the daughter of JJ (the first respondent) by another man, SW. All three had lived as a family unit with DJ; JJ joined the household after forming a relationship with DJ in 2008 and married him in June 2011. A fourth child, RJ, was born to DJ and JJ in December 2011.

The local authority acted after learning of findings made by Judge Masterman in 2006 in earlier proceedings concerning JJ’s second child, S. Those earlier proceedings followed the death in 2004 of JJ’s first child, T-L, aged three weeks. T-L had multiple non-accidental rib fractures caused on at least two occasions, bruising to her face, shoulder and elbow, and serious untreated nappy rash, and died of asphyxia. Judge Masterman found that JJ and SW had colluded to hide the truth and could not identify the perpetrator, JJ being consigned to a pool of possible perpetrators. JJ and SW separated in 2007; SW had been violent towards JJ.

The current proceedings were transferred to the High Court to determine, as a preliminary issue, whether Judge Masterman’s findings could cross the section 31(2) threshold. Crucially, the local authority conceded that the only matter relied upon was the finding as to T-L’s physical injuries; it expressly did not rely on failure to protect, collusion, or concealment from health professionals. Judge Hallam held that likelihood of significant harm can only be proved by reference to past facts proved on the balance of probabilities, that the threshold was not met, and dismissed the proceedings. JJ returned home. The Court of Appeal ([2012] EWCA Civ 380, [2012] 3 WLR 952) dismissed the appeal but granted permission to appeal to the Supreme Court.

Issues

The narrow question, as framed in the Statement of Facts and Issues and by Mr Cobb QC for the local authority, was whether a finding in earlier proceedings that there was a real possibility that one or other of two carers had perpetrated significant harm on a child is a finding of fact that may be relied upon in later proceedings involving only one of those possible perpetrators, in support of a conclusion that a subsequent child in a new family unit is likely to suffer significant harm within section 31(2)(a) of the Children Act 1989.

A secondary issue, on which the court divided, was whether such a consignment to a pool of possible perpetrators, if insufficient on its own, might nevertheless form part of the factual foundation when combined with other proved facts.

Arguments

The local authority did not dispute that a prediction of likelihood of significant harm must be founded on proven facts. It argued that consignment to a pool of possible perpetrators is itself a finding of fact capable of founding such a prediction, or alternatively that, when added to the undisputed fact that T-L had suffered harm, it provided the requisite foundation. It further submitted that treating the point otherwise would allow “legalism” to triumph over child protection, and that section 31(2)(a) should be interpreted no less flexibly than section 5 of the Domestic Violence, Crime and Victims Act 2004, and consistently with developments in the civil law on causation.

The respondents, JJ and DJ, submitted (per leading counsel) that it is a “vanishing rarity” for a finding of possible perpetration not to be accompanied by findings of culpable ill-treatment or neglect, and resisted any dilution of the requirement of a proved factual foundation.

Judgment

The Supreme Court unanimously dismissed the appeal.

Lady Hale

Lady Hale reviewed the line of authority: In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, Lancashire County Council v B [2000] 2 AC 147, In re O (Minors) (Care: Preliminary Hearing) [2003] UKHL 18, [2004] 1 AC 523, In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] AC 11 and In re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678. She concluded that para 49 of In re S-B was consistent with the earlier authorities and correctly stated the law, and should be followed in preference to the obiter dicta of Wall J in In re B (Minors) (Care Proceedings: Practice) [1999] 1 WLR 238, whose reasoning “fails to distinguish between the degree of likelihood required by the word ‘likely’ and the factual findings required to satisfy the court of that likelihood”.

She emphasised that Lancashire concerned the attributability criterion in section 31(2)(b), not likelihood; that In re O concerned the welfare stage; and that North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849 concerned identification of the pool, not prediction of future harm. None cast doubt on the requirement of a proved factual foundation.

Nor was the position out of step with the criminal law: section 5 of the 2004 Act punishes past conduct and child care law already protects the injured child and others in the same household. Of Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 and Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, she observed that the mesothelioma exception “can scarcely be described as the herald of a brave new world in which people may be held liable for harm whether or not they have caused it.”

Her central statement of principle was emphatic:

“A real possibility that something has happened in the past is not enough to predict that it will happen in the future… A finding of a real possibility that this parent harmed a child does not establish that she did… Care courts need to hear this message loud and clear.” (para 51)

She agreed with McFarlane LJ that In re S-B is not authority for the proposition that “if you cannot identify the past perpetrator, you cannot establish future likelihood” (para 54), emphasising that most cases come with “a multitude of facts” — the nature and number of injuries, delay in seeking medical attention, concealment or deception, household circumstances, violence, drink or drugs, and changes since — requiring “a careful, individualised assessment”.

On disposal, given that the local authority had acquiesced in treating the matter as a one-point case and had chosen not to rely on the findings of collusion, failure to protect and concealment, and given that JJ had cared for the children and the new baby without known cause for concern, it would be “most unfair to the whole family” for the proceedings to continue. Fresh proceedings would be required if the authority wished to make a case.

Lord Wilson

Lord Wilson agreed the appeal should be dismissed. He analysed the consequences of consignment to a pool at the welfare stage (relevant under sections 1(3)(e) and (f)) and at the threshold stage. He accepted that where X and Y remain together as a unit and put themselves forward as carers, the pool finding may suffice; the difficulty arises where they have separated and only X is a proposed carer. He described the local authority’s case as “deeply illogical”: pointing to T-L’s injuries alone was insufficient, and the pool finding was not a relevant second fact “because it falls short of ascribing their perpetration to her”. He declined to join in the Court of Appeal’s criticism of Stockton, noting local authorities’ genuine need for guidance, and observed that logic “is the blood which runs through the veins of the law”. Subject to the caveat that no argument was heard on article 8, he inclined to the view that nothing less than a factual foundation would justify such interference with family life, citing Olsson v Sweden (1989) 11 EHRR 259.

In his final three paragraphs he dissented from the majority on the subsidiary point, considering it illogical that a pool finding with “a value of zero on its own” could have greater value in company. He accepted, however, that the consignment may be information inviting further inquiry which might lead the court to find other facts established.

Lord Hope

Lord Hope held that the appeal was not hypothetical and raised an issue of general public importance. He described as “the golden rule” that a prediction of future harm must be based on facts proved on the balance of probabilities, citing the risk of unjustified removal illustrated by cases such as L, Petitioners (No 1) 1993 SLT 1310. He held that a pool finding remains relevant, both as information inviting further inquiry and because “in combination with other facts and circumstances” it may help show the threshold has been crossed — but it can never on its own be sufficient and must never be treated as a finding that X caused the injuries. If it is the only available finding, it must be disregarded for lack of sufficiency.

Lord Sumption, Lord Reed, Lord Clarke and Lord Carnwath

Lord Sumption shared Lord Wilson’s misgivings about the “combination” point but otherwise agreed with Lady Hale. Lord Reed (with whom Lord Clarke and Lord Carnwath agreed) saw the attraction of the view that In re H was over-complicated but held it “too late to reconsider” and settled law. He located the rule in the language of section 31(2)(a), contrasted with section 43(1)(a) (“reasonable cause to suspect”). He was less convinced, absent argument, that article 8 compelled the approach, noting that section 31(2) merely opens the way to the possibility of an order. He considered the reported “consternation” an over-reaction, since “some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established”, an onus ordinarily capable of being discharged.

Implications

The decision authoritatively settles that a person’s inclusion in a pool of possible perpetrators of harm to an earlier child cannot, standing alone, satisfy the likelihood limb of section 31(2)(a) in respect of a different child now cared for by that person in a new household. Para 49 of In re S-B is confirmed as correct, and Wall J’s contrary obiter dicta in In re B [1999] 1 WLR 238 are disapproved.

Equally important is what the decision does not hold. It is not authority that inability to identify a past perpetrator precludes a finding of future likelihood. Where all possible perpetrators remain carers of the subject child, the pool finding may suffice. Where they have separated, the authority must establish other proved facts — failure to protect, concealment, collusion, delay in seeking treatment, current household circumstances — from which risk can be inferred.

Practitioners should note the division on the subsidiary question. A majority (Lady Hale, Lord Hope, Lord Reed, Lord Clarke, Lord Carnwath) accepted that a pool finding may form part of a wider factual matrix; Lord Wilson and Lord Sumption regarded that as illogical. The court did not resolve whether such a finding is itself a “fact” in every sense, and Lord Hope stressed it must never be treated as a finding that X caused the injuries.

The case also carries a procedural warning. Both Lady Hale and the Court of Appeal stressed the artificiality of constructing a preliminary point of law by excluding relevant findings; the practical consequence for Stockton was dismissal of its application and the need to issue fresh proceedings. The judgment matters to local authorities, children’s guardians and family practitioners, reinforcing that the threshold exists to protect both children and families from unwarranted state interference, and that suspicion — however reasonable, and sufficient for investigation or interim measures — cannot found long-term compulsory intervention.

Verdict: The Supreme Court unanimously dismissed the local authority’s appeal. It held that a finding that a parent was merely a possible perpetrator of harm to another child cannot, by itself, establish a likelihood of significant harm under section 31(2)(a) of the Children Act 1989 in respect of a child in a new household. The care application remains dismissed; if the local authority wishes to allege that any of the children is likely to suffer significant harm, it must bring fresh proceedings. Lord Wilson (in his final three paragraphs) and Lord Sumption dissented on the subsidiary point whether such a finding may form part of a wider factual foundation.

Source: Re J (Children) [2013] UKSC 9